Sentencing Snapshot 239: Sentencing Trends for Causing Serious Injury Recklessly in the Higher Courts of Victoria 2014-15 to 2018-19

Date of Publication

Sentencing Snapshot no. 239 describes sentencing outcomes for the offence of causing serious injury recklessly in the County and Supreme Courts of Victoria from 2014-15 to 2018-19.

This is the most recent Snapshot for this offence.

You can also access statistics for causing serious injury recklessly on SACStat.

Authored and published by the Sentencing Advisory Council
© State of Victoria, Sentencing Advisory Council, 2020

Snapshot 239: Causing Serious Injury Recklessly

Introduction

This Sentencing Snapshot describes sentencing outcomes[1] for the offence of causing serious injury recklessly[2] in the County and Supreme Courts of Victoria (the higher courts) from 2014-15 to 2018-19.[3] Adjustments made by the Court of Appeal to sentence or conviction as at June 2019 have been incorporated into the data in this Snapshot.[4]

Detailed data on causing serious injury recklessly and other offences are available on Sentencing Advisory Council Statistics (SACStat).

A person who recklessly causes serious injury to another person without lawful excuse is guilty of this offence. Recklessness requires foresight on the part of the accused of the probability that injury will occur as a consequence of their actions. Injury means physical injury or harm to mental health, whether temporary or permanent. Physical injury includes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function. Harm to mental health includes psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm. Serious injury means an injury (including the cumulative effect of more than one injury) that endangers life or is substantial or protracted, and it also includes the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm. These definitions are not exhaustive.

Causing serious injury recklessly is an indictable offence that carries a maximum penalty of 15 years’ imprisonment and/or a fine of 1,800 penalty units.[5] Indictable offences are more serious offences triable before a judge and jury in the County or Supreme Court. Causing serious injury recklessly is also triable summarily by the Magistrates’ Court under certain circumstances,[6] if the Magistrates’ Court considers it appropriate and the accused consents. As at March 2017, if the victim was on duty as an emergency worker, custodial officer or youth justice worker, a court sentencing this offence must impose a sentence of imprisonment or other specified custodial sentence.[7]

This Snapshot focuses on cases where causing serious injury recklessly was the principal offence, that is, cases where causing serious injury recklessly was the offence that received the most severe sentence.[8]

Causing serious injury recklessly was the principal offence in 2.9% of cases sentenced in the higher courts between 2014-15 and 2018-19.

People sentenced

From 2014-15 to 2018-19, 259 people were sentenced in the higher courts for a principal offence of causing serious injury recklessly.

Figure 1 shows the number of people sentenced for the principal offence of causing serious injury recklessly by financial year. There were 35 people sentenced for this offence in 2018-19, down by 11 people from the previous year. This was the lowest number of people sentenced in the five years. The number of people sentenced was highest in 2014-15 (68 people).

Figure 1: The number of people sentenced for causing serious injury recklessly by financial year, 2014-15 to 2018-19

Financial Year Total
2014-15 68
2015-16 65
2016-17 45
2017-18 46
2018-19 35
Total 259

Sentence types and trends

Figure 2 shows the proportion of people receiving an immediate custodial sentence and non-custodial sentence for the principal offence of causing serious injury recklessly. An immediate custodial sentence involves at least some element of immediate imprisonment or detention.[9] Over the five-year period, 81.9% of people were given an immediate custodial sentence. The highest proportion occurred in 2018-19 (91.4%) and the lowest in 2014-15 (73.5%).

The proportion of people receiving an immediate custodial sentence in 2018-19 was up 6.6% from the previous year.

Figure 2: The percentage of people who received an immediate custodial sentence and non-custodial sentence for causing serious injury recklessly by financial year

Financial Year Immediate custodial sentence People sentenced Immediate custodial sentence Non-custodial sentence
2014-15 50 68 73.5% 26.5%
2015-16 51 65 78.5% 21.5%
2016-17 40 45 88.9% 11.1%
2017-18 39 46 84.8% 15.2%
2018-19 32 35 91.4% 8.6%
Total 212 259 81.9% 18.1%

Table 1 shows the number of people sentenced for causing serious injury recklessly from 2014-15 to 2018-19 by the most serious type of sentence imposed.[10] The availability of different sentence types has changed over time. Most notably, wholly and partially suspended sentences have now been abolished.[11] Changes to community correction orders have also influenced the sentencing trends over the five years covered by this Snapshot.[12]

Over the five-year period, the majority of people sentenced for causing serious injury recklessly received a principal sentence of imprisonment (78.0% or 202 of 259 people). The principal sentence is the sentence imposed for the charge that is the principal offence. The proportion of imprisonment sentences grew over the reference period, increasing from 69.1% in 2014-15 to 82.9% in 2018-19. Comparatively, the use of community correction orders (without imprisonment) decreased from 25.0% in 2014-15 to 5.7% in 2018-19.

Table 1: The number and percentage of people sentenced for causing serious injury recklessly by most serious principal sentence type and financial year

Sentence type 2014-15 2015-16 2016-17 2017-18 2018-19 Total
Imprisonment 47 (69.1%) 50 (76.9%) 38 (84.4%) 38 (82.6%) 29 (82.9%) 202 (78.0%)
Community correction order 17 (25.0%) 13 (20.0%) 4 (8.9%) 6 (13.0%) 2 (5.7%) 42 (16.2%)
Youth justice centre order 3 (4.4%) 1 (1.5%) 1 (2.2%) 1 (2.2%) 1 (2.9%) 7 (2.7%)
Other 1 (1.5%) 1 (1.5%) 2 (4.4%) 1 (2.2%) 3 (8.6%) 8 (3.1%)
Total people sentenced 68 65 45 46 35 259

Principal and total effective sentences

The principal sentence describes sentences for the offence at a charge level (as described in the previous section). The total effective sentence describes sentences at a case level.

The total effective sentence in a case with a single charge is the principal sentence. The total effective sentence in a case with multiple charges is the sentence that results from the court ordering the individual sentences for each charge to be served concurrently (at the same time) or wholly or partially cumulatively (one after the other).

Where a case involves multiple charges, the total effective sentence imposed on a person is sometimes longer than the principal sentence. Principal sentences for causing serious injury recklessly must be considered in this broader context.

The following sections analyse the use of imprisonment for the offence of causing serious injury recklessly from 2014-15 to 2018-19.

Principal sentence of imprisonment

Table 2 shows that a total of 202 people received a principal sentence of imprisonment for causing serious injury recklessly. Of these, 184 people received a non-aggregate term of imprisonment and 18 people received an aggregate term. There were 75 people who received a community correction order in addition to their term of imprisonment.

Table 2: The number and percentage of people sentenced to imprisonment for causing serious injury recklessly by sentence type and financial year

Type of imprisonment sentence 2014-15 2015-16 2016-17 2017-18 2018-19 Total
Imprisonment 27 (57.4%) 19 (38.0%) 22 (57.9%) 34 (89.5%) 22 (75.9%) 124 (61.4%)
Imprisonment and community correction order (combined) 17 (36.2%) 23 (46.0%) 12 (31.6%) 4 (10.5%) 3 (10.3%) 59 (29.2%)
Imprisonment and community-based order 0 (0.0%) 1 (2.0%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (0.5%)
Total non-aggregate imprisonment 44 (93.6%) 43 (86.0%) 34 (89.5%) 38 (100.0%) 25 (86.2%) 184 (91.1%)
Aggregate imprisonment 0 (0.0%) 0 (0.0%) 1 (2.6%) 0 (0.0%) 1 (3.4%) 2 (1.0%)
Aggregate imprisonment and community correction order (combined) 3 (6.4%) 7 (14.0%) 3 (7.9%) 0 (0.0%) 3 (10.3%) 16 (7.9%)
Total aggregate imprisonment 3 (6.4%) 7 (14.0%) 4 (10.5%) 0 (0.0%) 4 (13.8%) 18 (8.9%)
Total people sentenced to imprisonment 47 50 38 38 29 202

Figure 3 shows the length of imprisonment for the people who received a non-aggregate term.[13] Imprisonment terms ranged from 1 month and 6 days (combined with a community correction order) to 10 years, while the median length of imprisonment was 2 years and 8 months (meaning that half of the imprisonment terms were below 2 years and 8 months, and half were above).

The most common range of imprisonment term lengths was 1 to less than 2 years (39 people).

Figure 3: The number of people sentenced to a non-aggregate term of imprisonment for causing serious injury recklessly, by length of imprisonment term, 2014-15 to 2018-19

Imprisonment length Number of people
Less than 1 year 32
1 to less than 2 years 39
2 to less than 3 years 26
3 to less than 4 years 25
4 to less than 5 years 26
5 to less than 6 years 23
6 to less than 7 years 6
7 to less than 8 years 4
8 to less than 9 years 2
9 to less than 10 years 0
10 to less than 11 years 1
People sentenced 184

As shown in Figure 4, the average length of imprisonment imposed on people sentenced for causing serious injury recklessly ranged from 1 year and 9 months in 2015-16 to 4 years and 3 months in 2018-19. Overall, the average length of imprisonment for causing serious injury recklessly was 2 years and 10 months.

Figure 4: The average length of imprisonment imposed on people sentenced for causing serious injury recklessly by financial year

Financial year Number of people Average length of imprisonment term
2014-15 44 2 years and 1 month
2015-16 43 1 year and 9 months
2016-17 34 3 years and 1 month
2017-18 38 3 years and 9 months
2018-19 25 4 years and 3 months
Total 184 2 years and 10 months

Other offences finalised at the same hearing

Sometimes people prosecuted for causing serious injury recklessly are sentenced for other offences at the same hearing. This section looks at the range of offences that offenders were sentenced for alongside the principal offence of causing serious injury recklessly. It includes data on all people sentenced for a principal offence of causing serious injury recklessly, not just those who received imprisonment.

Figure 5 shows the number of people sentenced for the principal offence of causing serious injury recklessly by the total number of sentenced offences per person. The number of sentenced offences per person ranged from 1 to 18, while the median was 2 offences. There were 112 people (43.4%) sentenced for the sole offence of causing serious injury recklessly. The average number of offences per person was 2.53.

Figure 5: The number of people sentenced for the principal offence of causing serious injury recklessly by the number of sentenced offences per person, 2014-15 to 2018-19

Number of offences Number of people
1 112
2 65
3 33
4 25
5-9 17
10+ 7
Total 259

Table 3 shows the 10 most common offences, by number and percentage, co-sentenced alongside causing serious injury recklessly. The last column sets out the average number of offences sentenced per person. For example, 22 of the total 259 people (8.5%) also received sentences for causing injury recklessly. On average, they were sentenced for 1.36 counts of causing injury recklessly.

Table 3: The number and percentage of people sentenced for the principal offence of causing serious injury recklessly by the most common offences that were sentenced and the average number of those offences that were sentenced, 2014-15 to 2018-19

Offence Number of cases Percentage of cases Average number of proven offences per case
1. Causing serious injury recklessly 259 100.0% 1.03
2. Causing injury recklessly 22 8.5% 1.36
3. Commit indictable offence while on bail 20 7.7% 1.00
4. Common law assault 18 6.9% 1.33
5. Aggravated burglary 16 6.2% 1.06
6. Causing injury intentionally 15 5.8% 1.53
7. Theft (undefined) 14 5.4% 2.43
8. Affray (common law) 14 5.4% 1.00
9. Intentionally damage or destroy property 13 5.0% 1.54
10. Fail to answer bail 10 3.9% 1.50
People sentenced 259 100.0% 2.53

Total effective imprisonment terms

Figure 6 shows the number of people sentenced to imprisonment for causing serious injury recklessly by length of total effective imprisonment term. The total effective imprisonment terms ranged from 29 days (combined with a community correction order) to 10 years, while the median total effective imprisonment term was 2 years and 6 months (meaning that half of the total effective imprisonment terms were below 2 years and 6 months and half were above).

The most common range of total effective imprisonment term lengths was 1 to less than 2 years (44 people).

Figure 6: The number of people sentenced to imprisonment for causing serious injury recklessly by length of total effective imprisonment term, 2014-15 to 2018-19

Total effective imprisonment length Number of people
Less than 1 year 39
1 to less than 2 years 44
2 to less than 3 years 25
3 to less than 4 years 23
4 to less than 5 years 26
5 to less than 6 years 19
6 to less than 7 years 11
7 to less than 8 years 8
8 to less than 9 years 5
9 to less than 10 years 1
10 to less than 11 years 1
People sentenced 202

Non-parole period

If a person is sentenced to a term of immediate imprisonment of less than 1 year, the court cannot impose a non-parole period. For terms between 1 year and less than 2 years, the court has the discretion to fix a non-parole period. For terms of imprisonment of 2 years or more, the court must impose a non-parole period in most circumstances. If the court fixes a non-parole period, the person must serve that period before becoming eligible for parole. If the court does not set a non-parole period, the person must serve the entirety of their imprisonment term in custody.

Of the 202 people who were sentenced to imprisonment for causing serious injury recklessly, 39 were not eligible to have a non-parole period imposed because their total effective sentence was less than one year. Of the 163 people who were eligible to have a non-parole period fixed, 121 were given a non-parole period (74.2%).

Figure 7 shows the length of non-parole periods for people sentenced to imprisonment for causing serious injury recklessly. Non-parole periods ranged from 6 months to 7 years, while the median non-parole period was 2 years and 6 months (meaning that half of the non-parole periods were below 2 years and 6 months and half were above).

The most common range for non-parole periods was 1 to less than 2 years (36 people); however, the most common outcome was that no non-parole period was imposed (81 people).[14]

Note that it was not possible to determine the length of the non-parole period for one person.[15]

Figure 7: The number of people sentenced to imprisonment for causing serious injury recklessly by length of non-parole period, 2014-15 to 2018-19

Non-parole period Number of people
Less than 1 year 3
1 to less than 2 years 36
2 to less than 3 years 34
3 to less than 4 years 24
4 to less than 5 years 9
5 to less than 6 years 11
6 to less than 7 years 2
7 to less than 8 years 1
Undetermined 1
No non-parole period 81
Total people 202

Total effective sentences of imprisonment and non-parole periods

Figure 8 represents the 120 people who were sentenced to imprisonment for causing serious injury recklessly and for whom the non-parole period could be determined. Figure 8 compares the average length of total effective sentences with the average length of non-parole periods for these people by financial year.[16]

From 2014-15 to 2018-19, the average length of total effective sentences for all people increased from 3 years and 5 months in 2014-15 to 4 years and 11 months in 2018-19. Over the same period, the average length of non-parole periods also increased, from 2 years in 2014-15 to 3 years and one month in 2018-19.

Figure 8: The average total effective sentence length and the average non-parole period for people sentenced to imprisonment with a non-parole period for causing serious injury recklessly by financial year

Financial year Average total effective sentence length Average non-parole period
2014-15 3 years and 5 months 2 years and 0 months
2015-16 3 years and 9 months 2 years and 2 months
2016-17 4 years and 7 months 2 years and 11 months
2017-18 4 years and 9 months 2 years and 11 months
2018-19 4 years and 11 months 3 years and 1 month

Further data on total effective sentences of imprisonment and corresponding non-parole periods for causing serious injury recklessly is available on SACStat.

Summary

From 2014-15 to 2018-19, 259 people were sentenced for causing serious injury recklessly in the higher courts. Of these people, 202 (78.0%) were given a principal sentence of imprisonment.

The median principal imprisonment length was 2 years and 8 months, while the median total effective imprisonment length was 2 years and 6 months.[17]

Total effective imprisonment lengths ranged from 29 days (combined with a community correction order) to 10 years, and non-parole periods (where imposed) ranged from 6 months to 7 years.

Endnotes

1. In addition to sentencing outcomes, this series of reports includes custodial and non-custodial supervision orders imposed under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and in the count of people sentenced. These orders are not sentencing orders, as they are imposed in cases in which the accused is found to be unfit to stand trial or not guilty because of mental impairment. However, they are included in this report as they are an important form of disposition of criminal charges.

This Sentencing Snapshot is an update of Sentencing Snapshot no. 214, which describes sentencing trends for causing serious injury recklessly between 2012-13 and 2016-17.

2. Crimes Act 1958 (Vic) s 17.

3. Data on first-instance sentence outcomes in this Snapshot was obtained from the Strategic Analysis and Review Team at Court Services Victoria. Data on appeal outcomes was collected by the Sentencing Advisory Council from the Australasian Legal Information Institute, and was also provided by the Victorian Court of Appeal. The Sentencing Advisory Council regularly undertakes extensive quality control measures for current and historical data. While every effort is made to ensure that the data analysed in this report is accurate, the data is subject to revision.

4. In October 2017, the High Court delivered its judgment in Director of Public Prosecutions v Dalgliesh (A Pseudonym) [2017] HCA 41, in which it made two important findings about sentencing in Victoria. First, Victorian courts had been giving too much weight to current sentencing practices, which is just one of the factors courts are required to take into account when imposing a sentence. Second, where current sentencing practices are shown to be in error, the courts should change their practices immediately, not incrementally.

Although the High Court’s decision only occurred halfway during the reference period of this Snapshot, it may result in considerable changes to sentencing patterns for cases sentenced after October 2017.

5. The value of a penalty unit changes each year and can be found in the Victorian Government Gazette and on the Victorian Legislation website.

6. Under Schedule 2 of the Criminal Procedure Act 2009 (Vic), causing serious injury recklessly is not triable summarily after 28 October 2018 if the offence was alleged to have been committed against an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty.

7. Section 5(2G) of the Sentencing Act 1991 (Vic) requires a court sentencing a Category 1 offence to impose a sentence of imprisonment or other specified custodial sentence (but not imprisonment combined with a community correction order). Section 3 then defines Category 1 offence to include an offence against section 17 of the Crimes Act 1958 (Vic) (causing serious injury recklessly) if the victim was an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty. Further, unless a sentencing court finds that a special reason exists under section 10A of the Sentencing Act 1991 (Vic), section 10AA requires a court sentencing this offence to impose a sentence of imprisonment with a minimum non-parole period of at least 2 years if it was committed against an emergency worker on duty, custodial officer on duty or youth justice custodial worker on duty. This requirement to impose a prison sentence with a minimum two-year non-parole period also applies to young offenders (those aged under 21 at the time of sentencing) unless the court finds that there are reasonable prospects of rehabilitation or that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison, in which case the court may make a youth justice centre order of at least 2 years’ duration instead.

8. If a person is sentenced for a case with a single charge, the offence for that charge is the principal offence. If a person is sentenced for more than one charge in a single case, the principal offence is the offence for the charge that attracted the most serious sentence according to the sentencing hierarchy.

9. For the principal offence of causing serious injury recklessly, an immediate custodial sentence includes imprisonment, imprisonment combined with a community correction order, imprisonment combined with a community-based order, a custodial supervision order and a youth justice centre order.

10. For example, if the principal offence has a sentence that includes imprisonment combined with a community correction order, imprisonment is the most serious sentence type.

11. Suspended sentences have been abolished in the higher courts for all offences committed on or after 1 September 2013 and in the Magistrates’ Court for all offences committed on or after 1 September 2014.

12. For example, initially the maximum term of imprisonment that could be combined with a community correction order was set at 3 months, but it was increased to 2 years in September 2014 and reduced to 1 year in March 2017.

13. Data presented in this section does not include imprisonment lengths for people who received an aggregate sentence of imprisonment. Figures 3 and 4 only report on non-aggregate sentences of imprisonment for the principal offence of causing serious injury recklessly.

14. The 81 people sentenced to imprisonment with no non-parole period consisted of 39 people who were not eligible to have a non-parole period imposed and 42 people who were eligible but were not given a non-parole period with their sentence.

15. One person was given a non-parole period that related to more than one case. It was not possible to separately determine the length of the non-parole periods that related to each individual case.

16. Figure 8 only includes cases where the total effective sentence is an imprisonment term and a non-parole period is applied. This means cases with imprisonment combined with a community correction order (which do not receive a non-parole period) are excluded from Figure 8.

17. The total effective imprisonment sentence will be either the same length or longer than the principal sentence at the individual case level (since the total effective sentence combines the sentences for additional offences with the principal sentence). However, in some situations, the median total effective imprisonment sentence for an offence can be lower than the median principal sentence. This is because these two measures are derived from different sets of cases: non-aggregate sentence cases for the median principal sentence, and non-aggregate and aggregate sentence cases for the median total effective sentence. Total effective sentences for aggregate sentence cases with a principal offence of causing serious injury recklessly were generally substantially lower than total effective sentences for non-aggregate sentence cases. This resulted in a lower median total effective sentence than the median principal sentence in this Sentencing Snapshot.